The argument against reforming the system of mass incarceration has been that it may be expensive and at times imposes unfair sentences, but it has reduced crime. However, a new paper from University of Michigan economics professor Michael Mueller-Smith casts serious doubts on this assertion.
Professor Mueller-Smith looked at court records from Harris County, Texas, from 1980 to 2009. Among other things he observed that in Harris County people charged with similar crimes received totally different sentences depending on the judge to whom they were randomly assigned. He tracked what happened to these prisoners.
He created a measure that estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6% a quarter. Even among people who were incarcerated for lesser crimes, they would commit more serious offenses, upon release, the more time that they spent in prison.
The professor concluded that the benefits of taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals. Within five years of release, more than 75% of prisoners are arrested again.
Professor Mueller-Smith effectively begins to empirically validate Michelle Alexander’s theory of mass incarceration. The biggest reason why prison turns people into career criminals is that it obliterates earning potential. Laws enacted to be hard on criminals mean that felony status ends up disqualifying them from jobs, housing and voting.
Professor Mueller-Smith estimates that each year in prison reduces the odds of post-release employment by 24% and increases the odds they will live on public assistance.
As we have noted, laws like three-strikes and other repeat offender programs do not actually make the public more safe. Young people commit far more crimes than older people. They tend to be young, impulsive and dismissive of the future. The possibility of a longer prison sentence seems too far away to them to pose as a deterrent.
Statistical studies show that, as people age, they commit fewer crimes. But the repeat offender program works the opposite, increasing the penalty for crimes as they commit more crimes – or as they age. So at some point the individual is given a life sentence at a point where their future crime committing potential is actually at its lowest.
Times a-Changing in Texas
The death penalty has been declining in use across the country, but perhaps the biggest surprise is the number of cases where Texas jurors are opting for life sentences rather than imposing the death penalty.
An article this weekend in the Star-Telegram captures the changing times. Tim Cole, a four-time DA and now a defense attorney in Fort Worth writes, “A jury verdict in a death penalty case earlier this year in Fort Worth is a microcosm of what is happening all over the state.”
He highlighted the 2011 case where “Gabriel Armandariz murdered his two young sons — one was 2 years old, the other 6 months old — by strangling them. He then hung the younger child’s body from a closet clothes rack, snapped a picture and sent it to the children’s mother.”
He called this horrific crime a case that would be an “automatic” death penalty, writing, “The facts were as bad as any I’ve seen, but after just eight hours or so of deliberation the jury rejected the death penalty and gave Armandariz life without parole. The lawyers were crying. The jury was crying. Trial observers were crying. What happened?”
“Ten years ago this would have been a swift death penalty decision. But no longer. Something is changing,” he writes, noting that following that trial, there were two other cases in which prosecutors sought the death penalty, but which resulted instead in jury verdicts of life without the possibility of parole.
“These cases raise all kinds of questions: How much taxpayer money was spent on these ‘failed’ attempts to get death? Could these cases have been resolved years ago with a plea?” he continues. “Have these outcomes set a new standard for the death penalty? And, is there such a thing as an ‘automatic’ death penalty in Texas anymore? Perhaps not.”
Media outlets are starting to take note of the fact that more than seven months have passed since the Texas Department of Criminal Justice “received” a new inmate on Death Row.
Mr. Cole writes, “Considering the fact that Texas juries sentenced 48 people to death in 1999, this is an astonishing shift. According to legal experts, this also is the longest Texas has gone in a calendar year without a new death sentence.”
“Why the change?” he asks. “I believe it is happening because the problems with how the death penalty is assessed have become evident to everyone, including jurors. The ultimate punishment simply cannot be administered fairly, because it is run by human beings. And human beings make mistakes.”
He adds, “Even those who support the death penalty in theory surely would not argue that keeping it is worth the state taking even one innocent life.”
He writes, “We have to be perfect when it comes to the death penalty or we compound one great injustice with another — the execution of an innocent person. There is no acceptable margin of error when it comes to the death penalty. The rising number of condemned men being shown to be not guilty and then released from Death Row around the country makes it painfully clear that we have not been perfect.”
“Since life in prison without the possibility of parole was adopted in Texas in 2005, prosecutors and jurors have increasingly begun to accept it as a viable way to punish those who are guilty of committing heinous crimes, protect public safety and provide justice to victims’ families,” he writes. “Texas should join the 19 U.S. states where the death penalty has been abolished. Jurors across this state are sending the message that Texas can live without it.”
The sea-change occurring in Texas follows a trend across the country.
The death penalty faces an interestingly similar trajectory to bans on same-sex marriage. Increasingly, states are limiting, outlawing and delaying executions. This spring, Nebraska’s legislature voted 30-19 to override the veto of Governor Pete Ricketts and abolish the death penalty. Nebraska became the 19th state to repeal the death penalty, and the 7th state to do so since 2007. It became the first predominantly Republican state to abolish the death penalty in over 40 years.
In May, conservative columnist George Will wrote, “Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.”
In 2012, California narrowly defeated a ballot measure that would end the death penalty in California, even as executions have been ground to a halt since executing Clarence Ray Allen in January 2006.
Justice Breyer, in his dissent of the Supreme Court’s execution drug decision, joined with the minority opinion about the unconstitutionality of the lethal injection drug, but added, “For the reasons stated in Justice [Sonia] Sotomayor’s opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
Justice Breyer writes, “This Court has specified that the finality of death creates a ‘qualitative difference’ between the death penalty and other punishments (including life in prison) … There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability.”
He continues, “Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue … This pressure creates a greater likelihood of convicting the wrong person.”
“The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death,” he argues. “The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out … Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals.”
Ultimately only two justices agreed with Mr. Breyer’s thinking, but the fact that they pushed the argument suggests that the day may not be far off when the court rules the death penalty unconstitutional. If Texas is any guide, it might be irrelevant anyway, as jurors may stop issuing death sentences.
—David M. Greenwald reporting